Opinion
20-P-359
07-29-2021
Antonio R. SORCINELLI v. Danielle N. SORCINELLI.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff (husband) appeals from a second amended judgment of divorce nisi. The husband maintains that he was prejudiced at trial when the judge allowed evidence on the issue of custody after he was led to believe that these issues would not be addressed at trial. The husband contends that the surprise of the wife's dispute of shared legal custody at trial disrupted and confused his presentation of his case. The husband also claims that the judge erred when she altered the parties’ agreed parenting plan, resulting in an order that he pay child support. Further, the husband argues that the judge abused her discretion by not allowing him to introduce rebuttal evidence, not allowing him to fully cross-examine the wife, in allowing testimony from the wife's expert, in calculating his income, and in awarding the wife legal fees. For the reasons that follow, we affirm.
The judgment of divorce granted the husband and wife joint legal custody of their three minor children.
We review custody determinations for abuse of discretion. See Schechter v. Schechter, 88 Mass. App. Ct. 239, 245 (2015). "In custody matters, the touchstone inquiry [is] ... what is ‘best for the child.’ " Hunter v. Rose, 463 Mass. 488, 494 (2012), quoting Custody of Kali, 439 Mass. 834, 840 (2003). "Determining what parenting and living arrangements will be in a child's best interests ‘presents the trial judge "with a classic example of a discretionary decision." ’ " Smith v. McDonald, 458 Mass. 540, 547 (2010), quoting Youmans v. Ramos, 429 Mass. 774, 787 (1999). Likewise, we review child support orders, admissibility of expert testimony, limitations on rebuttal evidence, limitations on cross-examination, and the award of attorney's fees for abuse of discretion. See Commonwealth v. Javier, 481 Mass. 268, 285 (2019) (judge has wide discretion to qualify expert witness and to decide whether witness's testimony should be admitted); Calvin C. v. Amelia A., 99 Mass. App. Ct. 714, 720 (2021) (child support orders reviewed for abuse of discretion); Cooper v. Cooper, 62 Mass. App. Ct. 130, 141 (2004) ("[p]robate ... judge has discretion in awarding attorney's fees in appropriate circumstances"); Teller v. Schepens, 25 Mass. App. Ct. 346, 350 (1988) (judge has substantial discretion whether to permit presentation of rebuttal evidence).
The husband claims that he relied on the judge's assurance, made at a pretrial conference, that she did not consider custody to be an issue at trial. Citing to the pretrial conference transcript, the husband argues he was prejudiced at trial when custody issues were raised. Our review of the pretrial conference transcript shows that although the parties had agreed to a number of custody-related issues, they had not finalized their agreement and so advised the judge. It is clear from the pretrial conference transcript that the judge recognized that the parties had reached certain agreements regarding custody but needed to "fine tune" aspects of the agreement. Based on the lack of a final agreement regarding all custody issues, it was not an abuse of discretion for the judge to hear evidence on custody issues at trial.
Even if we were to consider the husband's arguments, the inadequate record appendix that he has provided hampers us. The husband failed to provide a transcript of the trial but instead only supports his claims with excerpts from a pretrial conference transcript. The husband has provided no record that he objected to any of the evidence he claims caused him to be prejudiced. Also, the husband's claim that the judge's parenting schedule order prejudiced him by causing him to pay child support is unsupported by legal argument or a record that supports his claim. Likewise, whether the judge made erroneous rulings of law concerning the admissibility of evidence, limitations on the husband's cross-examination of the wife, and the award of attorney's fees, the failure to include a transcript as part of the appellate record precludes us from reviewing those rulings. See State Line Snacks Corp. v. Wilbraham, 28 Mass. App. Ct. 717, 720 (1990).
The judge's rationale reflects that the parenting schedule was "[i]n the children's best interests." The rationale also indicates that the judge did not find the husband's income claimed in his financial statement credible and found the wife's expert's opinion on the husband's income "to be generally sound."
"The burden is on the appellant ... to furnish a record that supports his claims on appeal." Hasouris v. Sorour, 92 Mass. App. Ct. 607, 610 n.4 (2018), quoting Arch Med. Assocs. v. Bartlett Health Enters., Inc., 32 Mass. App. Ct. 404, 406 (1992). Accordingly, where we do not have a transcript of what occurred at trial, we are unable to conclude that the judge abused her discretion on any of the issues raised by the husband's appeal.
Furthermore, we are not required to consider appellate contentions falling below a minimal quality of competent legal argument. See Zora v. State Ethics Comm'n, 415 Mass. 640, 642 n.3 (1993). Here, the argument section of the husband's brief is mostly conclusory and often lacking in citation to relevant legal authorities or references to the record. As such, his brief does not constitute proper appellate argument. See Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019); Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011). We acknowledge that the husband was allowed to file a nonconforming brief. However, the husband's brief did not contain adequate appellate argument for purposes of Mass. R. A. P. 16 (a) (9), nor did he include an adequate record with the necessary transcripts pursuant to Mass. R. A. P. 8, as appearing in 481 Mass. 1611 (2019). That alone is a basis for leaving the judgment undisturbed. As a pro se litigant, the husband is held to the same standard as a litigant represented by counsel. "[T]he rules bind a pro se litigant as they bind other litigants." Mmoe v. Commonwealth, 393 Mass. 617, 620 (1985). While some leniency is appropriate in determining whether the papers of a self-represented litigant comply with applicable court rules, the allowance of the husband's motion for leave to file a nonconforming brief did not dispense with the minimum requirement of providing adequate appellate argument and the necessary appellate record.
As a result, we are lacking both a factual basis and a supported legal argument sufficient to permit meaningful appellate review of the issues raised on appeal. See Selmark Assocs. v. Ehrlich, 467 Mass. 525, 540 (2014) ; Connolly v. Connolly, 400 Mass. 1002, 1003 (1987) (error will not be presumed in absence of adequate record).
Second amended judgment of divorce nisi affirmed.